Dolan v. Demark

• Decision Date: 07 May 1886
• Citation: 10 P. 848,35 Kan. 304
• Parties: THOMAS M. DOLAN, as Sheriff of Washington County, v. C. W. VAN DEMARK
• Court: Kansas Supreme Court

10 P. 848

35 Kan. 304

THOMAS M. DOLAN, as Sheriff of Washington County, v. C. W. VAN DEMARK

Supreme Court of Kansas

May 7, 1886

Error from Washington District Court.

REPLEVIN by Van Demark against Dolan, as sheriff of Washington county. Trial at the February Term, 1884, and judgment for plaintiff. The defendant brings the case here. The material facts appear in the opinion.

Judgement Affirmed.

J. W Chadwick, for plaintiff in error.

J. W Rector, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of replevin, brought by C. W. Van Demark against Thomas M. Dolan, to recover certain goods and merchandise. The action was tried by the court, without a jury, and judgment was rendered in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, brings the case to this court. The facts of the case seem to be substantially as follows: On March 19, 1883, Henry H. Bradley owned the property in controversy, which, with other goods and merchandise, constituted his stock in trade as a merchant at Brantford, in Washington county. On that day he sold all the foregoing goods and merchandise to George Brabb, but this sale was made with the intention of hindering, delaying and defrauding his creditors, and was therefore void as against such creditors. On March 28, Thomas M. Dolan, who was then the sheriff of Washington county, levied an attachment upon a small portion of the goods. That levy is admitted to be valid, and really has nothing to do with this case. Afterward, but on the same day, Van Demark, who was an attorney at law and banker at Clyde, Cloud county, Kansas, and who held four separate claims of four different creditors of Bradley, went to Brantford and to Bradley and demanded payment of such claims; but Bradley stated that he could not pay the same, but agreed to and did indorse and deliver to Van Demark, as collateral security therefor, a promissory note for $ 2,000, dated March 19, 1883, given by Brabb to Bradley as part consideration for the goods sold by Bradley to Brabb, and Brabb, with the consent of Bradley and in his presence, gave a chattel mortgage on the goods to secure the promissory note. Neither this chattel mortgage nor a copy thereof has ever been filed in the office of the register of deeds. Van Demark at the time had knowledge of the fraudulent character of the sale of the goods from Bradley to Brabb. Van Demark claims that he immediately took possession of the goods, with the consent of Bradley and Brabb, with the knowledge of Dolan, and without objection from anyone, but Dolan claims that Van Demark never did take or have the possession of the goods. The question of Van Demark's possession is the principal disputed question of fact in the case. Afterward, but on the same day, a constable levied an attachment on a portion of the goods, but whether that levy is valid, or not, is immaterial in this case. Afterward, and on the same day, the sheriff levied three other attachments upon the remaining goods, the property in controversy in this case, and took possession of the same, and afterward, and on three other days, levied four other attachments upon the same goods. Afterward, and on May 4, 1883, Van Demark commenced this action for the recovery of the goods. On the trial it appeared that the sheriff had sold the goods for the sum of $ 3,089, which was admitted to be their fair value. The court also found that the claims held by Van Demark, with interest, amounted to $ 1,424.15, and for this amount rendered judgment in favor of Van Demark and against Dolan.

Dolan, the plaintiff in error, defendant below, sets forth nine assignments of error. We shall not discuss them separately, nor any of them in detail, except the principal ones; but all must be overruled.

The plaintiff, Van Demark, was an attorney at law and banker, and held the aforesaid claims against Bradley for collection; and by virtue of his authority as collecting agent, we think that presumptively he had a right to do whatever was best for his clients or customers to secure their collection. (Ryan v. Tudor, 31 Kan. 366, 2 P. 797; 1 Wait's Actions and Defenses, 221, et seq., and cases there cited.) And what he did for his clients or customers was in all probability the very best thing that could have been done for them, and was in fact necessary. But whether it was best and necessary, or not, is not a question for third parties to raise. As against Dolan and the persons whom he represents, we think that Van Demark, as the agent of the owners of the claims, had a right to do all that he has done in the present case.

It is claimed, however, by the plaintiff in error, defendant below that the chattel mortgage is void for the reason that it was never filed in the office of the register of deeds, and also for uncertainty in the description of the mortgaged property. The description was probably sufficient; but even if slightly defective, still, neither this objection nor the one that the chattel mortgage had never been filed amounts to anything, if Van Demark really and in fact...